United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER, UNITED STATES DISTRICT JUDGE
Jean Duplessis (“Duplessis”) brings claims
against U.S. Bank National Association as Trustee for
certificate holders of Bear Stearns Asset Backed Securities I
LLC Asset Backed Certification, Series 2005-AC6 (“U.S.
Bank”) and Select Portfolio Servicing, Inc.
(“SPS”) (collectively, “the
Defendants”). D. 1; D. 13 at 1. The Defendants move to
dismiss all of the claims asserted by Duplessis. D. 13. For
the following reasons, the Court ALLOWS the Defendants'
motion, D. 13.
Standard of Review
survive a motion to dismiss, ‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'”
Boroian v. Mueller, 616 F.3d 60, 64 (1st Cir. 2010)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.”
Sepúlveda-Villarini v. Dep't of Educ. of
P.R., 628 F.3d 25, 29 (1st Cir. 2010) (quoting Iqbal 556 U.S.
at 678). In evaluating a motion to dismiss, the court may
consider not only the complaint but also “documents
incorporated by reference into the complaint, matters of
public record, and facts susceptible to judicial
notice.” Butler v. Balolia, 736 F.3d 609, 611
(1st Cir. 2013) (quoting Haley v. City of Bos., 657
F.3d 39, 46 (1st Cir. 2011)).
following factual summary is based upon the allegations in
the complaint, D. 1, which are accepted as true for the
consideration of the motion to dismiss, and associated
documents incorporated by reference into the complaint.
Duplessis, along with his spouse, Virginia Duplessis
(“Virginia”), purchased a property at 601 River
Street, Mattapan, Massachusetts (“the Property”)
in 2005 and executed a mortgage in favor of the Mortgage
Electronic Registration System (“MERS”) as
nominee for Entrust Mortgage Inc. (“Entrust”) and
Virginia executed a note in favor of Entrust. D. 2-3 at 1; D.
1 ¶ 2; D. 2-1 at 6-9. The mortgage agreement here states
that “Borrower understands and agrees that . . . MERS
(as nominee for Lender and Lender's successors and
assigns) has the right: to exercise any or all of those
interests, including, but not limited to, the right to
foreclose and sell the property.” D. 2-3 at 3. The
maturity date on the note was July 1, 2020. D. 2-3 at 2. The
Property was purchased as an investment property and Jean
Duplessis now resides in Randolph, Massachusetts. D. 1
¶¶ 1, 13.
14, 2006, MERS executed an assignment of the mortgage to U.S.
Bank National Association, as Trustee for Certificate holders
of Bear Stearns Asset Backed Securities 1 LLC Asset Backed
Certificates, Series 2005-AC6. D. 1 ¶ 25; D. 2-1 at 4.
Duplessis and Virginia fell into default on the loan. D. 1
¶ 15. Duplessis and Virginia filed for bankruptcy and
received a discharge under Chapter 7 of the U.S. Bankruptcy
Code on December 10, 2008, which extinguished their personal
obligation under the note. D. 1 ¶ 16. In 2009, Duplessis
and Virginia separated. D. 1 ¶ 17. Also in 2009,
Duplessis received a notice from EMC Mortgage Corporation
(“EMC”), then the servicer of the mortgage,
requesting that Duplessis contact EMC to discuss options
regarding reinstating or modifying the mortgage. D. 1
¶¶ 12, 18. EMC refused to discuss the matter with
Duplessis without the participation of Virginia. D. 1 ¶
20. In 2010, EMC began a foreclosure action but did not
consummate it. D. 1 ¶¶ 21, 22. In 2013, notice was
mailed to the Property that servicing rights had been
transferred to SPS, but Duplessis did not receive that
notice. D. 1 ¶ 24. Duplessis “has no recollection
of receiving any written notice of foreclosure, ” as
required by Massachusetts law and the terms of the mortgage.
D. 1 ¶ 31. U.S. Bank has submitted copies of letters
that SPS sent to Virginia at the Property on January 8, 2016
and June 22, 2016, that communicated that the note was in
default, stated that “failure to cure the default . . .
may result in acceleration of the debt, laid out the
“total past due amount, ” stated that “you
can still avoid foreclosure by paying the total past due
amount before a foreclosure sale takes place, ” and
indicated that if such payment is not made, “you may be
evicted from your home after a foreclosure sale.” D.
8-3 at 3-5; D. 8-4 at 3-5. 
January 12, 2018, Duplessis received a notice from U.S. Bank
notifying him of a planned foreclosure sale to be conducted
on February 9, 2018. D. 1 ¶ 54. That notice stated that
Duplessis “may be liable to [U.S. Bank] in case of a
deficiency in the proceeds of the foreclosure sale.” D.
2-1 at 1. The notice was titled “Notice of Intent to
Foreclosure Mortgage and Intent to Pursue Deficiency After
Foreclosure of Mortgage.” D. 2-1 at 1. The notice was
mailed to Duplessis' current Randolph address. D. 2-1 at
1; D. 1 ¶ 1.
February 5, 2018, Duplessis filed this lawsuit against U.S.
Bank and SPS, D. 1, and moved for a temporary restraining
order to enjoin the pending foreclosure of the Property, D.
2, which the Court denied after a hearing, D. 10. On March
14, 2018, the Defendants moved to dismiss the complaint. D.
13. The Court has now also held a hearing on the
Defendants' pending motion to dismiss and took the matter
under advisement. D. 21.
Count I: Wrongful Foreclosure
asserts a claim for wrongful foreclosure against SPS and U.S.
Bank, contending that U.S. Bank was not entitled to foreclose
for three reasons: first, that MERS did not have the
authority to assign the mortgage to U.S. Bank because it only
held the mortgage as nominee and that the mortgage assignment
is therefore void, D. 1 ¶¶ 26-30; second, that the
chain of title to the mortgage is not complete because Bear
Stearns (the depositor, or the entity that created the trust
for which U.S. Bank is the ...